Ontario set to argue that Senate abolishment isn't as easy as Harper says

Canada’s largest province is set to argue that abolishing the Senate is tougher than the Harper government claims, and that provincial unanimity is required to make the constitutional change.

The arguments will be contained in a submission the Ontario government will make to the Supreme Court of Canada on Friday that sources say will include arguments that Senate abolition would require the consent of each of Canada’s 10 provinces, a step beyond what the Harper government has argued.

In its submission to the top court, the federal government argued that the consent of seven provinces, representing at least half the country’s population — the so-called “7/50” rule — was all that was needed to kill the upper chamber. Pierre Poilievre, the new democratic reform minister, said that this section suggested that unanimity is not necessary.

In its court documents, the federal government argues it can even tweak the wording of the Constitution to remove references to the Senate as being part of Parliament, effectively killing it without the need for provincial consent.

It would be convenient for the federal government to make unilateral amendments which satisfy unfulfilled promises for Senate reform

The internal economy committee oversees Senate expenses and is responsible for policing claims. Tkachuk was chairman of the committee and of its audit committee, which puts he and Olsen — who was appointed to the Senate after serving as Mr. Harper’s press secretary — at the centre of the government’s response to the allegations against Duffy, Pamela Wallin and the other senators charged with improper claims. The committee was tasked with overseeing the audit of Duffy’s expenses; if Olsen and Tkachuk were also involved in pressuring him to accept the Wright deal, it shatters their credibility and raises new doubts about the Senate’s ability to deal impartially with the crisis.

However, Ontario will argue otherwise, sources told the National Post Thursday.

The submission, and similar arguments filed from other provinces, could prove a major blow to Prime Minister Stephen Harper’s plans for the Senate if he decides abolition is politically desirable in the wake of the expenses scandal.

To head off concerns from within his own caucus, and try to stay ahead of Quebec’s legal challenge to the Senate Reform Act, Mr. Harper turned to the Supreme Court in February to seek the top court’s opinion on the appropriate amending procedures. A united front of provinces would prove hard to ignore — making Senate reform or abolition more difficult for a government that has long promised changes to the red chamber.

Even if the court rules that the 7/50 amending formula is recommended, Ontario’s position would prove a major hurdle, given the province is home to 38% of the country’s population.

The Ontario government’s stance does not necessarily mean Premier Kathleen Wynne’s government opposes Senate abolition, but she has been lukewarm on the idea since taking over from ardent abolitionist Dalton McGuinty.

She is on record as saying she sees the need for a chamber of sober second thought and told reporters at the recent meeting of premiers in Niagara-on-the-Lake, Ont., that while there is “consternation and concern” about the behaviour of some senators, the scandal was a separate issue from the broader debate about the existence of the Senate.

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The Harper government’s official position is that it would prefer reform to abolition.

But Conservative talking points have increasingly said that if “meaningful” reform cannot be achieved, then the Senate must “vanish” like the old upper houses in the provinces — a phrase Mr. Harper first uttered almost six years ago during a speech to the Australian parliament.

The expense scandal has only increased the drum beat of abolition. Saskatchewan has openly called for abolishment, and Manitoba said it favoured abolition when it submitted its argument this week to the top court.

It would also be convenient if the Senate could be more easily abolished through the general amending formula, rather than requiring unanimity. Convenience, however, is not a cornerstone of a federal constitutional democracy

Manitoba’s argument too was that abolishment required the unanimous consent of the provinces. The federal government, Manitoba argued, is simply hoping that “convenience should trump federalism” given the historical difficulties of constitutional change, Senate reform, and the Harper government’s “disinclination to engage the provinces.”

“It would be convenient for the federal government to make unilateral amendments which satisfy unfulfilled promises for Senate reform,” the Manitoba submission reads. “It would also be convenient if the Senate could be more easily abolished through the general amending formula, rather than requiring unanimity. Convenience, however, is not a cornerstone of a federal constitutional democracy.”

Quebec, in its own legal challenge to the Harper government’s Senate reform legislation, did not take an explicit position on abolition in its submission to the provincial court, but suggested the federal government could not act alone as the Senate was a central part of the Constitution.

The Supreme Court will hear oral arguments Nov. 12-14. A decision on a reference question could come as late as early 2015.

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